From June of 1991 until January 24, 1992, I performed all of Zacharski's former duties as Director of Office Services. On or about January 6, 1992, I was denied a salary increase and promotion to exempt status by Renfro and the new Chief Operating Officer - T. Farrell Shoffeitt, and for this reason gave notice of my resignation on the same date.

Cassano's Charge of Discrimination (P. Ex. A, prepared by EEOC by typing information onto its printed form and then having it signed by Cassano) named only DeSoto itself in the box provided immediately below the legend reading "Named as the employer, labor organization, employment agency, apprenticeship committee, state or local government agency who discriminated against me." But here is what Cassano testified at her deposition in this case (Dep. 130-31, 134):

Q. Take a look at it. Is that your signature at the bottom of your charge of discrimination?

A. Yes.

Q. You signed that on July 6, 1992?

A. Yes.

Q. Did you decide at that time to sue Mark Renfro?

A. Yes.

Q. Where is his name down as a Defendant or a Respondent to your charge of discrimination?

A. Apparently, they left it off.

Q. Who is "they"?

A. EEOC.

Q. Where is Farrell Shoffeitt's name?

A. Apparently, they left it off, EEOC.

* * *

Q. Well, the form that you filled out for EEOC, did you list Mark Renfro and Farrell Shoffeitt as Respondents?

MR. MALEVITIS: Objection, asked and answered.

BY THE WITNESS:

A. I gave them DeSoto, Mark Renfro, Farrell Shoffeitt, William Speer's names.

"Employers" under Title VII

Title VII's definition of "employer" reads this way in relevant part (Section 2000e(b), emphasis added):

(b) The term "employer" means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person. . . .

And Section 2000e-2(a) defines "unlawful employment practice" in terms of discriminatory conduct by "an employer." Finally, Section 2000e-5(e) calls for the EEOC filing of unlawful employment practice charges against "the person against whom such charge is made."

The only court within this district to address the issue has held that such supervisors are not "employers" against whom a Title VII action may be maintained in their individual capacities. The Court in Weiss reasoned that, to the extent that such a supervisor is an "agent" of the employer, such individual stands only as a surrogate for the employer and, hence, may only be held liable in their official capacity.

That approach is unpersuasive to this Court. Like its other colleague Honorable James Moran, and in part for the reasons that he has set out in Vakharia v. Swedish Covenant Hosp., 824 F. Supp. 769, 785-86 (N.D. Ill. 1993), this Court opts to uphold the prospect of individual personal liability stemming from a discriminatory decision made by a responsible decisionmaker on behalf of an employer corporation. After all, there is no compelling reason for importing into employment discrimination cases the "official capacity" concept that plays a role in Section 1983 jurisprudence:

1. It does not require a congressional enactment to render a corporation or other institutional employer responsible for its employees' actions taken on its behalf. And if that really were Congress' limited intention, it surely chose an odd and roundabout way of doing so -- why would it enact a provision that defined such employees as "agents" coming within the definition of "employer," instead of including a direct statement of respondeat superior liability in the statute?

2. It would be an extraordinary situation in which an assertedly discriminated-against employee, after conferring with an EEOC intake representative and explaining to that representative the circumstances of claimed discrimination by a corporation or other institutional employer, would end up naming only a fellow employee as the "employer,"
*fn4"
thus requiring an application of the "official capacity" doctrine to bring the actual employer into the equation. And if both the actual employer and a fellow employee were in fact targeted in any EEOC charge and in the subsequent complaint, the latter's inclusion would be mere surplusage under "official capacity" principles.

So this Court does not share the point of view of such decisions as Pommier and Weiss as a means of explaining away the normal reading of the statutory provisions.

But this time the authoritative case law in this Circuit recognizes an exception that creates the prospect of defendant status for persons such as Renfro and Shoffeitt despite their not being named as respondents. That is the clear teaching of Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 905-06 (7th Cir. 1981), which identified an exception to the general rule announced in the statute (numerous citations omitted):

Where an unnamed party has been provided with adequate notice of the charge, under circumstances where the party has been given the opportunity to participate in conciliation proceedings aimed at voluntary compliance, the charge is sufficient to confer jurisdiction over that party.

The purpose behind this exception is to prevent frustration of the goals of Title VII by not requiring procedural exactness in stating the charges. Complainants often file EEOC charges without the assistance of counsel and are not versed either in the technicalities of pleading or the jurisdictional requirements of the Act itself. They are also not expected to file EEOC charges which specifically articulate in precise terms, a narrow legal wrong which they have suffered, rather EEOC charges are typically detailed in lay person's terms. It is noted, in addition, that Congress could not have intended that a person filing EEOC charges should accurately ascertain, at the risk of later facing dismissal, at the time the charges were made, every separate entity which may have violated Title VII. Thus, given the Act's remedial purposes, charges are to be construed with "utmost liberality" and parties sufficiently named or alluded to in the factual statement are to be joined.
*fn5"

In this instance Renfro and Shoffeitt were certainly "sufficiently named or alluded to in the factual statement," and Cassano has confirmed that the formal determination as to the framing of the charge itself was done by EEOC personnel. Moreover, just as in Eggleston (id. at 907), no purpose would appear to have been served by giving Renfro or Shoffeitt a separate opportunity to participate in the conciliation proceedings -- after all, if DeSoto itself was not prepared to reconsider the assertedly discriminatory employment decisions (as it was not), involving the individuals in the process would appear to have been an act of supererogation. This Court's opinion in Pauls v. Elaine Revell, Inc., 571 F. Supp. 1018 (N.D. Ill. 1983) -- which adhered to and applied Eggleston to uphold the inclusion of individual defendants in a Title VII action -- is on all fours with the present case.

Conclusion

This Court denies the Renfro-Shoffeitt motion for summary judgment. They will remain as defendants in this action.

Milton I. Shadur

Senior United States District Judge

Date: July 19, 1994

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